Opinion
No. 11364.
June 2, 1938.
W.P. Crawford, of Superior, Wis., John Henry Lewin, and Hammond E. Chaffetz, Sp. Assts. to Atty. Gen., and John J. Boyle, U.S. Atty., of Madison, Wis.
W.J. Donovan and J. Edward Lumbard, Jr., both of New York City, and Herbert H. Thomas and San W. Orr, both of Madison, Wis., for defendants.
Weymouth Kirkland, Buell F. Jones, Louis L. Stephens, and John McInerney, all of Chicago, Ill., for Standard Oil Co. (Indiana), Allan Jackson, Amos Ball, and Hiram A. Lewis.
W.P.Z. German and Alvin F. Molony, both of Tulsa, Okla., for Skelly Oil Co., W.G. Skelly, and W.T. Atkins.
J.C. Denton and R.H. Wills, both of Tulsa, Okla., for Mid-Continent Petroleum Corporation and Robert W. McDowell.
C.E. Gately and C.A. Frueauff, both of New York City, E.L. Wingert, of Madison, Wis., and Theodore W. Brazeau, of Wisconsin Rapids, Wis., for Cities Service Co. and subsidiaries, and W.H. Merritt, Harry D. Frueauff, and O.J. Tuttle.
Ralph Horween, of Chicago, Ill., for Globe Oil Refining Co.
Louis Mead Treadwell, of New York City, for Socony-Vacuum Oil Co.
Joseph H. Marshutz, of Milwaukee, Wis., for Wadhams Oil Co. and A.G. Maguire.
Bethuel M. Webster, Jr., of New York City, for Tide Water Oil Co.
J. Craig McLanahan, of Baltimore, Md., for Jacob France.
Samuel A. Mitchell and Truman Post Young, both of St. Louis, Mo., for Shell Petroleum Corporation, R.G.A. van der Woude, R.D. Ebbert, L. van Eeghen, P.E. Lakin, Alexander Fraser.
R.H. Fletcher and A.M. Gee, both of Findlay, Ohio, for Ohio Oil Co., C.L. Fleming, and N.T. Stover.
R.H. Hudson, of Bartlesville, Okla., for Phillips Petroleum Co., Frank Phillips, A.M. Hughes, and H.A. Gardner.
Charles I. Francis, of Houston, Tex., and Carl N. Hill, of Madison, Wis., for Pure Oil Co., Henry M. Dawes, C.B. Watson, G.C. Morris and R.H. McElroy, Jr.
W.D. Whitney, of New York City, for Sinclair Refining Co. and J.W. Carnes.
Dan Moody, of Austin, Tex., and James J. Cosgrove and William H. Zwick, both of Ponca City, Okla., for Dan Moran, Harry J. Kennedy, and Continental Oil Co.
Goldthwaite H. Dorr, of New York City, for Charles E. Arnott.
This case is before this Court for disposition upon pleas of nolo contendere entered by some of the defendants in this action, after negotiations over a considerable period of time between the parties.
In the usual criminal case, where criminal intent is the chief element, such negotiations may be, and perhaps on occasion have been, improper. They cannot, in any event, conclude the Court.
This case, however, lies in a field where the Government might, with equal propriety, have proceeded initially by a civil action in equity, or, as here, by a criminal prosecution, either being an action to enforce penalties for the violation of a statute. The Court is of the opinion that the wrong here complained of is not malum in se, but rather malum prohibitum, one peculiarly of an economic nature and one in which the attainment of a proper understanding between the parties is of itself a desirable end.
The suggested disposition of this case upon a basis which has been discussed between the parties, subject to the approval of the Court, was presented to this Court recently. The Court, especially in the light of the facts developed in the so-called "first" case, from the discussions with counsel for the Government and the defendants, and from a study of this indictment, is familiar with what is here involved.
Realizing the solemn responsibility of the Court, one which cannot be shared or delegated, I have come to the conclusion that the disposition of this case, as recommended by the Government, is, under all the circumstances, fair and in the public interest, and one which this Court should and therefore does approve.